Obama repeatedly told us that Obamacare would reduce the cost of health insurance. It does just the opposite. The Congressional Budget Office says that premiums will double over the next six years.
But perhaps the biggest whopper that Obama told was that Obamacare would reduce the federal deficit. The Cato Institute calculates that Obamacare will add more than $352 billion to the national debt over the next ten years, despite shifting $4.3 trillion of costs to businesses, individuals and state governments.
A total of 20 states have joined a lawsuit challenging the constitutionality of Obamacare. New Hampshire is not one of them, despite the strong constitutional case against Obamacare.
The individual mandate, the lynchpin of Obamacare, is not authorized by either the Commerce Clause or the Necessary and Proper Clause. The Commerce Clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Not purchasing health insurance is not commercial activity, never mind interstate commercial activity.
The U.S. Supreme Court has said that the Necessary and Proper Clause allows Congress to regulate intrastate economic activity which could substantially affect interstate commerce. Retired Justice Stevens put it this way in the medical marijuana case: "Our case law firmly establishes Congress’s power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce." Not buying health insurance is not an economic activity, so no authority under the Necessary and Proper clause either.
Given the obvious problems with justifying the individual mandate under the Commerce Clause and the Necessary and Proper Clause, Obama’s attorneys have begun characterizing it as a tax. The problem here is that the "tax" for not participating in Obamacare is obviously a penalty, and not a tax, under U.S. Supreme Court case law: "A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act." Not authorized under the taxing power either.
So why hasn’t Lynch joined the lawsuit against Obamacare? In typical Lynch fashion he won’t give a straight answer, but the obvious answer is that he must support Obamacare.
It is vitally important that New Hampshire join the lawsuit against Obamacare. Even under the best-case scenarios, the Republicans are not going to have veto-proof majorities in Congress. That means that, for the time being, the battle against Obamacare must be fought in the courts.
The Supreme Court’s four hardcore liberal justices, Ginsburg, Breyer, Sotomayor and Kagan, view the role of the Supreme Court as advancing the progressive political agenda. So it is safe to predict that they will vote to uphold Obamacare. Assuming the so-called conservative justices, Scalia, Thomas, Roberts and Alito, find the individual mandate unconstitutional, the decision would come down to Justice Kennedy.
That is problematic because Kennedy has an expansive view of judicial power. The strongest case possible must be made that he should use that power to strike down the individual mandate and so we need as many states as possible to join the lawsuit against Obamacare.
It’s pretty simple. If you like Obamacare, vote for John Lynch. He does too. If you don’t think that government-run healthcare is such a good idea, then vote for John Stephen. He doesn’t think so either.